Blue Mountain Construction Company, a Corporation v. H. C. Werner and Tauf Charneski

On the 4th day of April, 1958, appellant filed in the United States District Court of Oregon a complaint seeking damages for alleged breaches of three sub-contracts entered into with appellees.

On April 28, 1958, defendants served and filed their answer. No affirmative relief was sought.

*306 On May 19, 1958, appellant moved for a dismissal of the action without prejudice under Rule 41(a) (2), F.R.Civ.P., 28 U.S.C.A. 1 No supporting affidavit was presented and no reasons were given for the dismissal. Appellee objected to the dismissal on the ground that appellee had “undertaken at considerable expense to go through this thing and prepare ourselves for our answer and also to prepare ourselves for trial.”

The court denied the motion. Whether or not a dismissal will be granted is within the sound judicial discretion of the court. Ockert v. Union Barge Line Corp., 3 Cir., 1951, 190 F.2d 303 ; Rollison v. Washington National Ins. Co., 4 Cir., 1949, 176 F.2d 364 . We think it follows that each case must be determined on its own particular facts. We find no abuse of discretion in the denial of this motion. There was no showing whatever in support of the motion. It was no more than a…

(concurring).

The trial court did not abuse its discretion in failing to permit dismissal after answer had been filed simply because counsel had changed his theory and believed he had a better chance to win in the federal court in Washington. The court had the right to consider the disadvantages arising to defendants by such action. This Court refused to issue a preliminary writ of mandamus upon the ground that discretion had not been abused but required appellant to go to trial in the action in Oregon.

Appellant continued to fence for advantage. After the mandamus proceeding had been dismissed, the trial court, by order dated May 19, 1958, set the case for formal pretrial conference on July 21, 1958. On July 17, appellant filed a motion where it declined to proceed further in the above action. The trial court dismissed the action with prejudice under Rule 17 of the Oregon District Court, which provides:

Irrespective of the question of abuse of discretion, the trial court had a right to dismiss the cause under this Rule because of the positive defiance of the order of the court setting the case for pretrial conference. All questions could have been raised at the pretrial…

(dissenting).

I am not disposed to go along with my associates in this case. In my opinion the judgment below should be reversed.

*309 Preliminarily, as the majority opinion has stated, appellant, on the 4th day of April, 1958, filed in the district court its complaint seeking damages for claimed breaches of contract. On April 28 following appellees served and filed an answer containing no counterclaim and asking no affirmative relief. On May 19 thereafter appellant, through its Oregon counsel, orally moved for a dismissal of the action without prejudice under Rule 41(a) (2), Federal Rules of Civil Procedure, which motion was denied by minute entry on the same day. In denying the motion, the court said: “The right to be sued in your own community is a valuable right. The motion is denied." Clearly, such is an advantage and a convenience, but appellees have no legal right to be sued in Oregon. The venue statute which is applicable in diversity actions, 28 U.S.C.A. § 1391 (a), permits actions to be brought either in the district court where all defendants or all plaintiffs reside.

On May 23, appellant filed a motion for reconsideration and renewal of the earlier motion for…

270 F.2d 305 BLUE MOUNTAIN CONSTRUCTION COMPANY, a Corporation, Appellant, v. H. C. WERNER and Tauf Charneski, Appellees. No. 16206. United States Court of Appeals Ninth Circuit. August 19, 1959. Rehearing Denied September 21, 1959. Cashatt & Williams, Jerome Williams, Spokane, Wash., for appellant. Norman B. Kobin, Leo Levenson, Portland, Or., for appellees. Before HEALY, ORR and FEE, Circuit Judges. ORR, Circuit Judge. 1 On the 4th day of April, 1958, appellant filed in the United States District Court of Oregon a complaint seeking damages for alleged breaches of three sub-contracts entered into with appellees. 2 On April 28, 1958, defendants served and filed their answer. No affirmative relief was sought. 3 On May 19, 1958, appellant moved for a dismissal of the action without prejudice under Rule 41(a) (2), F.R.Civ.P., 28 U.S.C.A. 1 No supporting affidavit was presented and no reasons were given for the dismissal. Appellee objected to the dismissal on the ground that appellee had "undertaken at considerable expense to go through this thing and prepare ourselves for our answer and also to prepare ourselves for trial." 4 The court denied the motion. Whether or not a…